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New South Wales |
Case Name: | McDonald v R |
Medium Neutral Citation: | [2015] NSWCCA 80 |
Hearing Date(s): | 16 April 2015 |
Decision Date: | 1 May 2015 |
Before: | Basten JA at [1]; |
Decision: | Refuse application for an extension of time in which to give notice of application for leave to appeal against sentence. |
Catchwords: | APPEAL – sentencing – appeal against sentence – murder conviction and sentence following guilty plea –notice seeking application for extension of time in which to seek leave to appeal filed six years after sentencing – Muldrock error alleged – the judgment on sentence did not expressly refer to R v Way [2004] NSWCCA 131; 60 NSWLR 168, but referred to R v AJP [2004] NSWCCA 434 and R v Simon [2005] NSWCCA 123 – whether sentencing judge applied Way principles and fell into error – whether extension of time should be granted |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B, 61; Pt 4, Div 1A |
Cases Cited: | Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 |
Category: | Principal judgment |
Parties: | William Andrew McDonald (Applicant) |
Representation: | Counsel: |
File Number(s): | CCA 2006/4418 |
Decision under appeal: | |
Court or Tribunal: | Supreme Court |
Citation: | |
Date of Decision: | 27 July 2007 |
Before: | Price J |
File Number(s): | 2006/4418 |
JUDGMENT
BASTEN JA: On 27 July 2007 the applicant, William Andrew McDonald, was sentenced by Price J in the Supreme Court for the murder of Barry Shaw on 27 August 2005. Following a plea of guilty, the applicant was convicted and sentenced to a term of imprisonment with a non-parole period of 18 years and a balance of term of six years, giving an overall sentence of 24 years imprisonment.[1]
Almost six years after the sentencing, the applicant filed a notice seeking an extension of time within which to seek leave to appeal. He is one of numerous offenders who have sought to appeal out of time as a result of the judgment of the High Court delivered on 5 October 2011, Muldrock v The Queen,[2] which identified error on the part of this Court in R v Way.[3] The error concerned the approach taken by this Court with respect…
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- McDonald v The Queen [2015] NSWCCA 80
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- [2015] NSWCCA 80
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CaseChat Overview and Summary
The primary legal issue before the Court was whether the trial judge had applied the principles from R v Way in sentencing the appellant. This required the Court to examine the sentencing judgment and determine if the principles from R v Way were sufficiently considered, despite not being expressly referenced. The Court had to decide if this constituted a Muldrock error, warranting the grant of an extension of time to appeal the sentence.
The Court found that while the trial judge did not expressly refer to R v Way, the judgment did consider its principles implicitly through references to other cases. The Court concluded that there was no Muldrock error as the sentencing judge had effectively applied the relevant principles. Therefore, the Court determined that an extension of time to appeal the sentence should not be granted.
As a result, the appeal against sentence was dismissed, and no extension of time was granted to the appellant.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
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